Environment Law case

Bhoj Raj Aer V. Lalitpur sub-metropolitan et al., 2061

Order of Mandamus with Prohibition, Division Bench, Decision No. 7447
Petitioner: Bhoj Raj Aer / Respondent: Lalitpur sub-metropolitan et al.

Facts of the case

 (Former) Lalitpur Nagar Panchayat Ward no. 5(ka) Plot no. 126, Area 205.8.0.0 - the Public land, Ashoka
Stupa having cultural, historical and archaeological significance.

 Nature of use of the land- presence of Ashoka Stupa ( Archaeological and historical value) and releasing
the fish at the last worship of Minnath Jatra in Sapta Patal Pond ( cultural importance).

 The place of the land is clearly mentioned as Lagankhel in tilling certificate (jotaha mahal) and area
measurement record shows that the land is not owned by any particular person or HMG but is a public
land. In the tenant form the place was written as lagankhel and the land owner records prepared by and in
the name of HMG on 2050/10/29, makes it clear that the debated land is the same land where the Ashok
stupa and sapta patal pond was present. Prior to the land owned by HMG, the Teaching institution’s
property management District Committee, Lalitpur had claimed the land with an area 14.10.2.0 to be theirs
property, baselessly.

 According to the Land Management Act, 2024(sec-20), Land Survey Act, 2019 (sec-11.b) and Revenue
Act, 2034 (sec-24), the land which has not been registered in the name of the donor and which cannot be
done has been illegally seized, by registering it as a contaminated land. Provision in the following (1) of
Schedule 2 (n) of the Environmental Protection Regulations, 2054 - to conduct Environmental Impact
Assessment (EIA) while implementing any proposal to that area.

 It is clear that the construction of the opposition school building on the area, will have an impact on the
environment and public drinking water supply in Ward no. 6,12 and 15, because the water available on
stone taps on those wards are from the Sapta Patal pond, which is the main source of drinking water. Sec-3
of Environment Protection Act, 2053- the ministry of Population and Environment has not complied with
the legal duty of the defendant to immediately stop construction work as per Rule 48(2) of the Rules and
Sec- 18(1) of the Act, while carrying out the work without permit.

Petitioner’s Claim

 Defendant involved in the work against the law- Sec.161(c) and sec.161 (4) of the Local Autonomous
Government Act, 2055 prohibits the defendant to carry such construction.

 Violation of - Article 12(1), Art.18 (1), Art.19 (1) of Constitution Kingdom of Nepal, 2047.

 The content of the dispute includes legal and legal issues of public concern and the protection of the pond
area as an integral part of the environment protection of Nepali citizens as well as local residents’
fundamental rights related to property, consumption and religion. Therefore, the information of Lalitpur
sub-metropolitan dated 2060.2.12 and the recognizance and map passed on 2060.2.30 should be made
void by order of mandamus.

 Since the area of the pond is important for many reasons, an order should be issued in the name of
defendants to implement any proposal only after approving the EIA. The writ petition also seeks to issue
an interim order granting priority as there is a situation where the act is against the law and irreparable
damage is done to the public property.

Defendant’s Claim

 District Administration office, Lalitpur- as the disputed land is of ancient importance, the construction
of the building has been stopped on 2061.3.16 after receiving the letter of Dept. of Archaeology on 15 th.
 Whether the site is of ancient imp. or not, based on the report submitted by a team of experts, mentioning
some conditions it has been released from the letter of dept.

 Lalitpur Sub-metropolitan- no objection to obstruct the construction of the building: evidence submitted
in the format of sec 150 of Local Self-Governance Act, 2055 and Rule 149 of the Act, Inspection of the
site by an engineer (sec153), recognizance (sec 154), permit to construct building and map passed( sec 155
and 156) of the Act. Sec-7 of the Justice Administration Act, 2048 BS and the Muluki Ain court procedure
no. 29 it is not allowed to enter the area of extraordinary jurisdiction while there is an alternative treatment
option to be filed in the district court. The municipality has given permission for the construction of the
building as per the criteria set by the archeology department. The building has been constructed after
passing the map of Lalitpur District Court, Lalitpur Bar Association and Land Revenue Office. It is the
duty and responsibility of this metropolitan to prevent the environmental adverse effects of historical and
archeological objects and it is fully aware of this. Thus the writ petition should be rejected as the school
building has been mapped as per the law and within the criteria set by HMG.

 Namuna Machindra Secondary School- the construction of the school building has been suspended and
the financial burden has been added to the school. The building has been constructed by various bodies; the
pond has been seen only in Plot no. 105 in Lagankhel area. In order to manage and preserve the stupa
premises, the municipality and the Stupa dev. committee have constructed the 10 feet road from the land of
the school, leaving about 3.8 feet. There’s no authentic fact to say that the pond is in the said land. It
cannot be said that it is a declared monument area and an environmentally protected area. Written
Statement from the school to reject the illusionary and manipulative tactic of destroying the environment
and water sources.

 Ministry of population and environment- This Ministry has been continuously working and striving for
the protection of environment, prevention and control of pollution on the basis of Environment Protection
Act, 2053 BS and Environment Protection Rules, 2054 BS. The reason for making this ministry defendant
could not be disclosed in the writ petition. As per the provisions in Schedule (2) point (अं), (1) and (7) of
the said Rules, EIA has to be done while implementing any proposal in the field of historical, cultural and
archeological sector and public drinking water supply resources. The proposer who wants to implement the
proposal should submit it to the Ministry of Population and Environment by the concerned body as per
Sections 5 and 6 of the said Act. Written reply to reject the writ petition as no proposal has been received
for EIA approval through the concerned ministry regarding the construction of the school building.

 Department of Archaeology- Despite the intensification of environmental encroachment after the

concerned institutions or bodies started constructing twin buildings along the ponds to the north side and
west side of the stupa, the height approved by the school alone does not affect the environment of the area.
Although the hymn titled Mansahuti Yagyna mentions the issue of releasing fish in Sapta Patal Pokhari,
the place for releasing fish has not been identified out of 68 ropanis of land. If the school building is
constructed within the criteria prescribed by archeology, the environment will not be affected. If a concrete
plan is submitted to maintain the school as a pond within the area, the construction of the school building
has been completed without any compensation. Thus, the writ petition should be rejected as the building,
which was constructed in compliance within the criteria, doesn’t majorly effect the historical environment.

Questions related to the case

1. Whether the petitioners have the Jurisdiction to file a writ petition or not.
2. Whether the pond is in the same place within the constructed school building or not.
3. Whether the court should issue an order of mandamus and prohibition or not.
Use of other precedents

 Yogi Narharinath v. Prime Minister's Office and others (NKP 2053, No.1, D.N. 6127
 Surya Prasad Sharma Dhungel v. Godavari Marvel Industries Pvt. Ltd.( नेपाल कानून पत्रिका
स्वर्णशुभजन्मोत्सव विशेषाडकक, 2052,pg. 169),
 Prakashmani Sharma v. HMG and others (मानव अधिकार सम्बन्धी फैसलाहरुको
प्रकाशन, 2059 (विशेषाङ्कक) pg. 280)

Decision of the court

 In regard to the first question, it is seen that the writ petition has been filed by the locals and legal
practitioners working in the field of human rights and environmental protection for the promotion of the
school building which is affecting the place of religious and cultural importance. As it is the duty of every
citizen to protect the heritage of religious, cultural and archeological importance, there was a meaningful
relationship between the petitioners in the present dispute. According to the principles established in
the mentioned precedents and the provisions of Article 88 (2) of the Constitution of the Kingdom of
Nepal, 2047, the petitioners have the right to petition on issues of public interest and concern of historical,
religious and cultural archeological importance.
 In relation to the second question, the letter does not indicate that the school building under construction
is being constructed at Sapta patal on the basis of the decision of the school management committee. It has
been alleged that the writ has been filed in 2034 BS. Considering that the disputed land was registered in
the name of the school as per the decision of 2034 BS, the copy of the certified field book attached to the
file of law suit shows that the area of the former plot number 126 was registered in the name of HMG by
the decision of 205.8.0.0 land dated 2050-10-29. Article 24 (2) of Revenue Act 2034, if any person
registers a government or public land in the name of an individual before or after the commencement of
this section, such registration shall be automatically revoked. The school did not have to raise any
objection on the fact that the land registered in the name of HMG, shall be allowed to perform the
religious, cultural, historical and water resource consumption and activities that have been going on since
time immemorial. The fact that there are many ponds within the area of 205 ropanis of land that can be
seen from the photos presented during the debate. However, just because the disputed pond is not visible
from the survey map doesn’t change the fact or evidences that have been presented which clearly show
that Sapta Patal pond was there.
 Therefore, due to the above mentioned reasons, the information posted by Lalitpur Sub-metropolitan dated
2060/2/12, recognizance dated 2060/2/30 and map passed recognizance are also found to be defective and
declared void by order of mandamus. As the land is a place of historical, archeological and cultural
significance, the construction of such a building in such a way as to affect the view from the vicinity of the
pond and the stupa should be done only after approving the EIA. An order will be issued in the name of the
Ministry of Population and Environment, Department of Archeology and District Administration Office,
Lalitpur to inspect and make proper arrangements from time to time.

Comments

 The land being the place of historical, archeological and cultural significance, it is necessary to follow the
EIA as to evaluate the environmental impacts at an early stage in project planning and design and find
ways and means to reduce adverse impacts in the local environment, also when such procedure is already
prescribed in law. Had the school observed the EIA prior to the construction, there would have been no
obstructions to build or reason to file a law suit.
 The court’s decision to entertain the writ is valid and reasonable as the content of the dispute includes legal
issues of public concern and the protection of the pond area as an integral part of the environment
protection of Nepali citizens as well as local residents’ fundamental rights related to property, consumption
and religion.

Reference - http://nkp.gov.np/full_detail/3013

Prepared by: Sadikshya Lamichhane, BALLB 7th sem, Section: A, Roll no: 25